State v. Johnson

Appeal
from the Iowa District Court for Woodbury County, Steven J.
Andreasen, Judge.

Defendant
appeals his convictions for three counts of burglary in the
third degree; one count of theft in the first degree; and one
count of theft in the second degree. AFFIRMED IN PART,
REVERSED IN PART, AND REMANDED.

The
State charged defendant Kevin Johnson with Count 1: burglary
in the third degree of a Family Dollar store on March 17,
2014; Count 2: burglary in the third degree of a
Jehovah's Witness Church on March 17, 2014; Count 3:
burglary in the third degree of the L & K Laundry on
January 24, 2014; Count 4: theft in the first degree for
property taken at the L & K Laundry; and Count 5: theft
in the second degree for property taken at the Family Dollar.
The State also alleged Johnson was subject to the habitual
offender enhancement on each count. On December 30, 2014,
Johnson stipulated he had been previously convicted of at
least two felonies and was subject to the habitual offender
enhancement.

Johnson
waived a jury, and a trial to the court commenced on January
6, 2015. On May 24, 2015, the trial court filed its findings
of fact, conclusions of law and verdict-guilty on all counts
as charged with the habitual offender enhancement. Johnson
was sentenced on September 18, 2015, to imprisonment for a
period not to exceed fifteen years on each count. Count 1 was
ordered to be served consecutively to Count 3. Johnson filed
a timely notice of appeal on September 21, 2015. On appeal,
he claims (1) the convictions cannot stand as the testimony
of the accomplice was not corroborated, and (2) the trial
court abused its discretion in sentencing him to consecutive
terms of imprisonment.

I.
Corroboration Issue.

When
the defendant challenges the trial court's determination
that corroborating evidence existed to warrant submission of
the case to the trier of fact, our review is for correction
of errors of law. See Iowa R. App. P. 6.907.

A.
Legal standard for corroboration of accomplice
testimony.

Iowa
Rule of Criminal Procedure 2.21(3) provides that a person may
not be convicted "upon the testimony of an accomplice or
a solicited person, unless corroborated by other evidence
which shall tend to connect the defendant with the commission
of the offense; and the corroboration is not sufficient if it
merely shows the commission of the offense or the
circumstances thereof." Corroborative evidence need not
be strong nor confirm every material fact. State v.
Berney, 378 N.W.2d 915, 918 (Iowa 1985). And it need not
confirm all the elements of the crime charged. State v.
Cuevas, 282 N.W.2d 74, 78 (Iowa 1979). Such evidence may
be direct or circumstantial. State v. Bugely, 562
N.W.2d 173, 176 (Iowa 1997). Any corroborative evidence
tending to connect the defendant to the commission of the
crime supports the credibility of the accomplice and is
sufficient. State v. Vesey, 241 N.W.2d 888,
890 (Iowa 1976). The only requirement is that the
accomplice's testimony be supported in some material fact
tending to connect the defendant to the crime charged.
State v. Aldape, 307 N.W.2d 32, 41 (Iowa 1981). It
must be inculpatory but need not be entirely inconsistent
with innocence. State v. Larson, 512 N.W.2d 803, 806
(Iowa Ct. App. 1993).

The
corroboration requirement serves two purposes: "First,
it independently tends to connect defendant to the crime.
Second, it supports the credibility of an accomplice whose
motives are clearly suspect because of the accomplice's
self-interest in focusing blame on the defendant."
State v. Brown, 397 N.W.2d 689, 694 (Iowa 1986). The
existence of corroborative evidence is a question of law for
the court, but its sufficiency is a question of fact for the
fact finder. Bugely, 562 N.W.2d at 176. Each case
must be governed by its own circumstances, and evidence that
merely raises a suspicion the accused is the guilty party is
not sufficiently corroborative of the testimony of an
accomplice to warrant a conviction. State v.
Gillespie, 503 N.W.2d 612, 617 (Iowa Ct. App. 1993).

When
evaluating sufficiency challenges, we do not resolve
conflicts in the evidence, assess the credibility of
witnesses, or weigh evidence. State v. Nitcher, 720
N.W.2d 547, 559 (Iowa 2006). Rather, we view all the evidence
in the light most favorable to the State, even if
contradicted, and indulge in every legitimate inference that
may be fairly and reasonably deduced from this evidence.
State v. Robinson, 288 N.W.2d 337, 340 (Iowa 1980).
The fact-finder decides which evidence to accept or reject.
State v. Williams,695 N.W.2d 23, 28 (Iowa 2005).

B.
Discussion.

At
trial Johnson did not dispute that the crimes had occurred
but denied his involvement. Evidence produced by the State at
trial that Johnson was involved in the burglaries and thefts
was substantially based on the testimony of an accomplice,
Jimmy. Johnson claims that Jimmy's testimony was not
corroborated as required by rule 2.21(3) and, therefore, the
evidence was insufficient to convict him, his convictions
must be reversed, and the case must be remanded for
dismissal.

In its
written findings, the trial court set out the evidence
establishing the burglaries and thefts occurred, as well as
the evidence the court found corroborated the
accomplice's testimony that Johnson participated in these
crimes. Jimmy testified that he and Johnson committed all
three burglaries, and Johnson does not challenge the trial
court's findings of fact as not being supported by
evidence.

Since
Johnson does not challenge the crimes occurred, we find it
only necessary to look at the district court's findings
as to evidence of corroboration connecting him to these
crimes and determine if it meets the legal requirement to
establish defendant's guilt.

C.
Burglaries and investigation.

1.
L & K Laundry.

During
the night of January 24, 2014, L & K Laundry in Sioux
City was burglarized. When the laundry opened for business in
the morning, the owner discovered the break-in and reported
it to the Sioux City police. In investigating, police
observed damage to the back door and a bar/brace inside the
door indicating the door had been pried open. Additionally,
officers found that the phone line on the outside of the
building and wires connected to two alarms inside the
building were cut. A safe inside the laundry office area had
been moved, pried open, and the contents stolen. An
identification technician processed the laundromat. No
fingerprints were discovered; however, a partial shoe print
consistent with Nike Shox shoes was obtained from on top of
the safe. As of March 17, 2014, no arrests had been made in
regard to this burglary.

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